On 26 September 2014, The Italian regional administrative tribunal referred the question regarding the constitutionality of the administrative enforcement procedures foreseen by a new regulation on online copyright infringement to the Italian Constitutional Court.

Here's why:

the Regional Administrative Court of Lazio required the Constitutional Court to issued its judgment, since it held that the regulation might be unconstitutional, for violation of the principles of statute and judicial protection in relation to the exercise of freedom of expression and economic initiative, as well as for the violation of criteria of reasonableness and proportionality in the exercise of legislative discretion and of the principle of the court, in relation to the lack of guarantees and legal safeguards for the exercise of freedom of expression on the Internet.

Given that the constitutionality of the copyright regulations is in question, consumer and business organizations -- Altroconsumo, Movimento di difesa del Cittadino and Assoprovider -- have sent a formal request to AGCOM asking for the whole approach to be suspended until a decision is handed down. They argue that this is necessary in order to avoid the high costs that AGCOM would incur from being sued by those who have had their sites shut down, in the event that the regulations are found unconstitutional (original in Italian.)

AGCOM has refused to suspend the regulations completely, but it has slowed down the pace of its actions, as Sarzana notes:

in October 2014, the President of Agcom, Mr. Angelo Cardani, indicated that Agcom shall proceed "with caution" , addressing only cases "of real urgency", pending the case in the Constitutional Court.

Although hardly satisfactory, that does show that even AGCOM realizes that there is a possibility its days of unbridled power to censor sites are numbered. Let's hope so.

from the forward-to-the-past dept

The political machine of the European Union is undergoing a major makeover. Elections recently took place for Members of the European Parliament, bringing in many new faces. Later this year, a new array of Commissioners will take up jobs in the European Commission. The third main player in the EU political system is the Council of the European Union, a more anonymous kind of body, which consists of a varying group of ministers from the 28 member states who meet to discuss key areas. It may be shadowy, but can provide important hints about what is happening behind the scenes in Brussels. For example, the Presidency of the Council, currently held by Italy (EU countries take it in turns), has just presented a "paper aimed at structuring the exchange of views on IPR enforcement" (pdf). It notes that the European Commission carried out a consultation on copyright recently, and comments that:

The current legislative framework is not necessarily fit for purpose in the digital environment.

That's undoubtedly true, as the public's massive response to the consultation confirmed. Sadly, though, the paper's "solutions" to updating copyright are basically straight out of the infamous Anti-Counterfeiting Trade Agreement (ACTA) we thought had been killed off in 2012. Here are the paper's first suggestions for how things could be updated and improved:

Clarify which tools are available to identify IPR infringers: clarify the retention and disclosure of personal data by intermediaries, in order to improve identification in case of commercial scale infringements while guaranteeing the protection of fundamental rights of individuals (thus avoiding abuses); clarify to what extent due diligence obligations such as « know your customer » are or should be imposed on intermediaries.

As that indicates, there is the troubling suggestion that the metadata retained by ISPs and telecoms in the EU -- data that we were assured had to be kept, but only for use in the fight against terrorism -- might be handy for tracking down people who make unauthorized copies of copyrighted material. After all, if it's sitting there, why not use it? "In case of commercial scale infringements" is just a fig leaf. For ACTA, which the European Commission helped draft, the following dangerously broad definition of the term (pdf) was used:

Acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.

"Indirect economic or commercial advantage" includes just about everything. In that quoted section above, there's also a wonderful new euphemism for using intermediary liability to turn ISPs into the copyright police: "know your customers." The second suggestion builds on that idea:

Improve the efficiency of actions to stop IPR infringements through better involvement of intermediaries: clarify the notion of intermediary in the context of Directive 2004/48 (are payment and advertising service providers included ?), clarify the conditions for imposing injunctions on them (to what extent should intermediaries be involved in the infringement ?), clarify what type of injunction can be imposed on intermediaries (which measures ? should priority be given to the « follow the money principle » to deprive commercial scale infringers of the revenue flows that draw them into such activities?); clarify the duration of injunctions and the possibility of obtaining cross-border or even pan-European injunctions.

"Better involvement of intermediaries" - that's a close cousin of a phrase in ACTA:

Promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement

Suggestion three in the new paper is as follows:

Improve the accessibility of judicial systems, in particular for SMEs: introduce fast track procedures for small claims.

Maybe "fast track" means this idea from ACTA:

Each Party shall provide that its judicial authorities have the authority to adopt provisional measures inaudita altera parte where appropriate

Translated into English, that means allowing a court hearing without bothering to give the accused a chance to defend themselves -- that would certainly save time. Finally, we have this:

Clarify the allocation of damages: increase the predictability of the amounts allocated and ensure that damages awarded are sufficient to cover the prejudice suffered

Again, that seems to be a throwback to another section of ACTA:

In determining the amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

Although the phrasing may be a little different, it's striking how the same old bad ideas keep on turning up. It will be interesting to see how the new European Commission takes this forward -- although maybe "backward" would be a better description of where it is going.

from the good-luck-with-that dept

You'd think that after years and years of pointless banter along these lines that people in power would understand just how ridiculous they sound when they try to blame search engines for infringement. TorrentFreak points out that the UK's Culture Secretary Sajid Javid gave a barn raising speech to folks from the British recording industry. It starts out with the usual political fluff about just how important the recording industry is and how much money the government is forking over to the industry in questionable subsidies. And, apparently Javid has no qualms directly admitting to accepting favors (bribes?) from the industry. Specifically he tells a "joke" about now his kids thing he's cool, because he can get hot concert tickets ("my new-found ability to get tickets for the Capital FM Summertime Ball, or Sam Smith at Somerset House!"), whereas in his previous job no one was rushing to give him such favors. It's a joke, but it's pretty telling.

Then, about halfway through, he gets to the meat of the speech, in which Javid talks about the need to (of course) ratchet up copyright laws even more. Because that's the red meat of any speech to the recording industry.

People in your industry have a true vocation.
You identify talented artists and record, release and publicise their work not just to make money, but because you love music.
You have a passion for it.
And intellectual property protection underpins that passion.
It allows you to do what you do best.
Without enforceable copyright there would be no A&R, no recording studios, no producers, no session musicians, no publicity, no artwork.

Now, copyright law absolutely does enable one particular business model, but to argue that there would be no industry, no producers, no session musicians, no publicity and no artwork without enforceable copyright is just silly. And easily disproved since (1) there was plenty of artwork and music before that (2) there are still plenty of people who produce music without relying on copyright as a business model and (3) "session musicians" tend not have a copyright in the music they play anyway. They get paid session wages. That's not about copyright.

Note how he insists that the recording industry is not in it for the money, but for the "passion." He's pretty sure of this, even though copyright has nothing to do with passion, and everything to do with money. But when it comes to the internet sites he doesn't like, he's absolutely positive the opposite is true:

As I said earlier, you work in music because you love it.
Copyright crooks don’t love music.
They love money, and they’ve been attracted to the industry solely by its potential to make them rich.
Take away their profits and you take away their reason for being.

Interesting. Because most of those sites make almost no money. And, of course, the vast majority of file sharing happens between individuals for no profit at all. Are there some sites making some money from ads? Yes, but it's a tiny amount. And, um, as we've pointed out in the past, if it was such a lucrative business, wouldn't that suggest that the industry players themselves should get into the business and provide a better product?

But, the main point he's making is the favorite trope of the industry: that piracy is really all the big internet companies' fault, and he's demanding that they wave their magic wand, or he'll get legislation passed that forces them to wave their magic wand.

Let me be absolutely clear that I completely agree with Mike Weatherley when he says that the search engines also have to play their part.
They must step up and show willing.
That’s why Vince Cable and I have written to Google, Microsoft and Yahoo, asking them to work with you to stop search results sending people to illegal sites.
And let me be perfectly clear: if we don’t see real progress, we will be looking at a legislative approach.
In the words of Martin Mills, “technology companies should be the partners of rights companies, not their masters.”

We wrote about Weatherley's ridiculous comments earlier this year, but apparently Javid would like to double down on them. Here's the stuff he leaves out: what's an "illegal" site? Who defines what is or is not an illegal site? The legacy entertainment industry once claimed that YouTube is an illegal site. Should Google, Microsoft and Yahoo block all traffic to YouTube? Or what about Veoh, which they also declared to be an illegal site, until it was shut down. Only later did a court rule it to be perfectly legal. Oops. Too late.

What about Soundcloud? Or the Internet Archive? Or Vimeo? All of those were on a list that Universal Music helped create a few years ago of "illegal sites" on which no advertising could be placed.

So, again, how exactly are they determining what is and what is not an "illegal" site? That seems kind of important, because history shows this industry isn't very good at figuring it out. Remember, this is the same industry that tried to ban the VCR and the MP3 player entirely. I have a real problem with thinking that they're the final judges on what is a "legal" or "illegal" site.

And, of course all of this leaves out that very, very, very little piracy happens because of someone going to a search engine and typing in the name of an artist. We looked at the data, and there's almost no evidence that search is a major driver of piracy -- especially when it comes to someone looking up an artist's name or songs. In some cases, where people do searches directly related with copyright infringement, it may help them find an unauthorized track, but it's difficult to believe that the person doing such a search is looking for a way to pay in the first place.

In other words, it's pretty ridiculous to blame search engines for helping people find what they're looking for. The real problem is that the industry hasn't been giving people what they're looking for. Trying to ban search engines from actually helping people isn't exactly a reasonable solution. It's a bad idea that won't work.

The rest of his speech is the usual misleading stats and ridiculous assumptions. He talks about how many unauthorized downloads there are, never bothering to consider how many of those would actually involve payment -- or how many of those might be happening because there aren't useful, cheap and convenient alternatives. It's just all "piracy." He talks about how they're throwing millions at an "education" campaign. This is the old trope that comes up over and over again. "If only," people think, "everyone learned about copyrights, they'd stop infringing." Yeah, right. It's never worked. People don't download unauthorized tracks because they don't know about copyright law. They know. Education is a waste of money -- and nearly all educational campaigns are so laughable that the people they're directed at just laugh at them (often because they actually understand the issues better).

If, as Javid claims, music really "matters" to the UK then creating a bogus "war" with the tech industry (the industry that is actually delivering real solutions) seems like the exact wrong way about helping out. It's just extending the bogus narrative that the recording industry should sit back and let the government and other industries "solve" their failure to adapt to a changing marketplace in which music lovers want a better product.

from the say-what-now? dept

We've written a bunch about the City of London Police* and their extrajudicial campaign against "piracy" by trying to scare web hosting and domain registrar firms into taking down websites based on nothing more than the City of London Police's say so. However, Adrian Leppard, the guy in charge of the City of London Police's Intellectual Property Crime Unit (funded both by taxpayers and legacy entertainment companies) spoke at an IP Enforcement Summit in London and his comments, relayed by Torrentfreak, should raise questions about whether or not this is the right person to have anything to do with stopping "crime" on the internet:

“Whether it’s Bitnet, The Tor – which is 90% of the Internet – peer-to-peer sharing, or the streaming capability worldwide. At what point does civil society say that as well as the benefits that brings, this enables huge risk and threat to our society that we need to take action against?”

Yeah, try to parse that one. Beyond not being true, it's almost entirely nonsensical. And this guy is ordering websites completely shut down based on nothing more than his say so?

This sounds kind of like the idiotic debates that were had a decade or so ago, when clueless folks from the entertainment industry were first getting online.

"The Internet pushes through every border control legislation we have and it is carrying a huge amount of harm to our society, as well as offering creative opportunity for business. At some point there has to be a debate and a challenge about the harm the Internet brings."

Yeah, that debate happened long ago, and people realized (1) the claims of harm are completely overblown by folks like yourself and (2) the benefits are massive. Debate closed.

But, really, what Leppard is doing is trying to declare war on the internet, because it's upset the business model of a few businesses that are funding this effort (which would suggest a less-than-unbiased view of the issue):

"The new legislation that’s necessary is not just about prosecuting people and protecting people, we’ve got to think about some of the enabling functions that allow this to happen that we just take for granted."

"Enabling functions"? He's talking about regulating the internet to add deeper layers of secondary liability, thereby effectively destroying one of the most important ingredients to the internet's success. All because his friends in the obsolete legacy parts of the entertainment industry haven't figured out how to adapt.

It would appear that the City of London Police are the legacy entertainment industry's dream law enforcement group: completely clueless about technology and innovation, and not all that concerned about basic legal concepts like due process and protections against third party liability. That lets them rampage through the internet like bullies trying to shut down anything their friends in the industry don't like, oblivious to any collateral damage it might cause. That's a very dangerous tool, and it's going to cause serious problems before too long.

* I don't know what it is about the City of London Police that always seems to make people want to clarify stuff in the comments, but just to cut all this off: (1) Yes, I know that the City of London Police covers just "the City of London" which is about a 1-square mile area within London, rather than the wider London police force and (2) I also know that many of the big banks and big London businesses are in City of London, so the City of London Police have some amount of powerful connections with businesses. There is no reason to clarify any of that in the comments. We know already.

from the because-no-square-footage-can-go-unsurveilled dept

The government does enjoy installing cameras pretty much everywhere it can do so with a minimum of complaints. If it thinks there might be some controversy, it just buries the details until after the fact.

Chicago Mayor Rahm Emanuel has proposed an ordinance that would compel all gun dealers to video-record sales (“to discourage traffickers and buyers who use false identification”). Presumably the video recordings would have to be kept for an extended time, since future investigations that would use the video recordings could happen years after the sale. A similar New York state bill would require that the videos be kept for one year.

And all the government asks in return for its impositions is total, at-will access.

Minnesota's bill targeting cell phone resellers stipulates this:

Recordings and images required by paragraph (a) shall be retained by the wireless communications device dealer for a minimum period of 30 days and shall at all reasonable times be open to the inspection of any properly identified law enforcement officer.

New York's bill mandating surveillance in gun shops says this:

THE STORED IMAGES SHALL BE MAINTAINED AT THE PERMITTED BUSINESS LOCATION FOR A PERIOD NOT LESS THAN ONE YEAR FROM THE DATE OF RECORDATION, AND SHALL BE MADE AVAILABLE FOR INSPECTION BY A POLICE OFFICER UPON REQUEST.

The scrap vehicle operator shall also photograph the seller's vehicle, including license plate, either by video camera or still digital camera, so that an accurate and complete description of it may be obtained from the recordings made by the cameras. Photographs and recordings must be clearly and accurately associated with their respective records. Any video must be shown to law enforcement, upon request.

The problems with legislation like this are numerous. While many of these businesses may record these transactions for their own safety, being compelled to do so is a completely different matter, especially when it's bundled with open, warrantless access by law enforcement.

Then there's the issue of mission creep. Should these laws pass unaltered, the government will find itself unable to resist the pull of other businesses it feels are on the "sketchy" side, or that possibly cater to people who may have other, less legal habits.

I suspect that, especially if the gun sales videorecording bills are enacted, similar laws will be proposed for sales of alcohol (which is often sold to underage buyers who have fake IDs, or to straw purchasers who are buying on behalf of an underage buyer), for sales of marijuana in places where it has been legalized, for sales of legal substances that are nonetheless potential drug or bomb precursors, and so on.

Given the government's penchant for equating nearly everything with its two favorite Wars (Terrorism/Drugs), a vast cross-section of retailers will find themselves legislatively "encouraged" to oblige the government's "collect it all" excesses.

from the dedicated-follower-of-fashion dept

Among governments, bad digital policy ideas have a habit of spreading. For example, after France pioneered the "three strikes" approach, it was picked up by a number of other countries, but it is now finally dying a long-overdue death -- except in Australia, which evidently missed the memo that this approach demonstrably doesn't work. Now the latest fashion seems to be "notice and staydown", which Mike wrote about a couple of months back. After largely abandoning "three strikes", France may be signing up for this latest hot trend, as TorrentFreak reports:

French anti-piracy agency HADOPI handed the government a long-awaited report on the development of "operational tools" for dealing with online piracy. Several key areas are outlined, including the creation of a new type of takedown notice designed not only to take content offline, but keep it offline for up to six months.

Here are some details:

These notices would oblige a host to "stop and prevent, for a specified period, the reappearance of content that has been identified as constituting an infringement of copyright or related rights on the site."

It's suggested that these kinds of orders could be valid for up to six months but at least initially would only be directed at sites hosting actual files, not links to files such as in the case of BitTorrent indexes.

Although the "staydown" would be for up to six months, rather than forever, as proposed in the US, it's easy to predict future demands from the copyright industry to extend that limit when it doesn't have the desired results, and to include BitTorrent indexes as well. And there's no way smaller companies and startups could cope with the huge task of monitoring uploads for things that have to "staydown". All-in-all, then, this seems destined to join "three strikes" in the digital dustbin of history, along with all the other failed enforcement approaches. The question is: what will be the next bad idea governments adopt?

from the punchline:-she-wasn't dept

The MPAA has been pushing its strict take all prisoners approach to force movie theaters into pissing off nearly all movie goers by wildly accusing anyone with a mobile phone of destroying the entire US economy. Or something like that. We've already seen theaters call in Homeland Security when a guy so much as dared to wear his Google Glass during a movie. And now, the latest story of MPAA-driven excess, as revealed by TorrentFreak, involves Cinemark ejecting an elderly woman because she had an old "brick, slider-type" mobile phone, which her husband handed to her as he had to leave. There is also a theory that someone else in the theater saw her theater-provided closed captioning device and assumed that it was a recording device. Either way, the lady (who is not a fluent English speaker, and had trouble understanding the commotion) was ejected from the theater, even though theater employees realized she was not recording the movie.

from the definition-of-insanity dept

For years, we've pointed out the ridiculousness of how copyright maximalists are always screaming about the need for "anti-piracy" laws to stop infringement, which they insist is killing them. In the US, new anti-piracy laws are proposed (and often passed) every couple of years -- and the end result is always the same: infringement continues unabated. But rather than learn from that, and realize that a different approach is needed, maximalists always assume the answer is MOAR ENFORCEMENT!. Despite basically all of human history showing that enforcement is no real solution, including some rather detailed modern evidence, maximalists see enforcement/anti-piracy laws as the only hammer to deal with the infringement nail.

The latest example of this is in Russia, a country that the US attacked for years for its supposedly lax approach to dealing with copyright infringement. However, in the last year or so, Russia has massively ratcheted up its "anti-piracy" laws, giving the government incredible powers to censor sites that it deems infringing. And it's been using that law, demanding sites be blocked entirely by ISPs. Yet, it appears that both providers of authorized services and government officials (all the way up to Vladimir Putin) are admitting that the law simply hasn't been "working" to stop infringement or drive people to legitimate services.

But, rather than recognize that perhaps a different approach is needed, the Russians have apparently decided to double-down on the failed policy:

Of course, it should be noted that there is also an ulterior motive in Russia. Putin and others long ago realized that copyright laws are an incredibly effective tool for attacking government critics, stifling dissent and censoring political opponents. And, even better, Russia knows that it can do this with US approval, because the US stupidly keeps demanding Russia do more to fight copyright infringement. So, they keep ratcheting up those laws... and then use them to stifle dissent and censor critics. But... none of it actually drives people to buy legitimate content. But I doubt the Russian government really cares, as that will just give them another excuse to ratchet up those censorship laws for other purposes.

from the serious-question dept

We've been asking for years which is more important for content creators: stopping piracy or increasing revenue? It's a question they hate to respond to, because every time I ask it, the responses often involve ad hominem attacks and anger. I've even seen a very small number of content creators claim that stopping piracy is more important, though I can't understand how that makes any sense at all. Think of it this way: if you could know, with certainty, that you as an artist could make more money and have a bigger fan base, but the "trade off" is also knowing that a larger group of people would effectively "free ride" and not pay for your content, why is that a problem? After all, in that scenario, everyone is better off. The artist is better off because they're making more money and have a larger fanbase. The fans are better off because more of them get to know of an artist they like. So where is the problem?

Yet, nearly all copyright policy seems to be focused on increasing enforcement to try to stop piracy, with almost no concern as to whether or not it actually helps the bottom line. Time and time again we see draconian enforcement rules put in place with no evidence that it actually helps sales. At all. The latest example comes from Japan. As you may recall, last year, Japan passed some insanely draconian anti-piracy laws that made unauthorized downloading a criminal offense. The law has been in effect for almost a year and the results are staggering.

From October 1 2012, those downloading copyrighted material without permission faced a potential two year jail sentence. But while users of Japan’s favorite P2P networks plummeted, sales have not been positively affected. Total music sales this year so far are down 7% on the same period last year, but digital sales are even worse – down 24% since the law was introduced.

From the numbers, it looks like there was a brief boost in sales right after the law went into place, and then they pretty much dropped off a cliff. This is similar to the effect we've seen elsewhere as well. There's a brief adjustment period where people may buy a little more briefly, but it fades very, very quickly.

Once again, this shows how ratcheting up enforcement (even to insane levels like criminalizing file sharing) doesn't actually help. Instead, listening to what consumers want, providing better, more open, more consumer friendly solutions does actually get consumers to spend more.

from the oh-really-now? dept

We've mentioned Rep. Marsha Blackburn a few times on this site. She's one of the RIAA's favorite elected officials, who apparently hates government interference in markets... except if it's intellectual property laws. She seems unable to recognize the irony of attacking attempts to regulate the internet via telecom policy (net neutrality is picking winners and losers), while strongly supporting attempts to regulate the internet and technology via intellectual property law. Of course, that's the government picking winners and losers too, but the winners just happen to be some of her biggest campaign contributors: pharma and the entertainment industries.

She's now written an incredible, ridiculous, and almost entirely fact-free article, insisting that the way to drive innovation in this country forward is to increase intellectual property enforcement. The article is so incredibly misleading that it's laugh-out-loud funny at times -- though, I give kudos to whatever poor staffer penned it for her, for including the line "Let’s begin an honest discussion" after paragraph after paragraph of incredibly dishonest discussion. Let's dig in.

Last year the U.S. Chamber of Commerce released a report highlighting how U.S. industries reliant on intellectual property supported more than 55 million jobs, contributed to $5.8 trillion in economic output and accounted for nearly 74 percent of total exports.

Okay, we've discussed and debunked this one before. It's a silly report that doesn't actually come anywhere close to saying what Blackburn claims it says. First off, it's not "industries reliant on intellectual property." It's industries that are defined by the study's authors as being "intellectual property intensive." The language choices here are subtle, but there's an incredibly important distinction. Nothing in the study suggests that IP laws or enforcement are necessary or responsible for the economic output in question. They just lump every industry that has some connection to intellectual property into a giant stew, and then pretend it's all because of IP. That's why grocery stores are the biggest industry in terms of "jobs." Because the report is ridiculous. Stronger IP enforcement doesn't help grocery jobs, but Marsha Blackburn is about to pretend the report she misread says it will.

Oh, and I should note that the Chamber of Commerce (and the firm they hire to write these reports, NPD) seem to have wildly fluctuating numbers. Last year's report said these IP intensive industries contributed $7.7 trillion. Just one year later and it's down to $5.8 trillion? And, at a time when both the movie and music industries claimed to be growing? Maybe, just maybe, the numbers in the report are completely bogus.

These figures prove what should be obvious: Strong intellectual property (IP) rights are essential to expanding economic growth and fostering innovation. Without strong IP protections, innovation will diminish and so will America’s economic greatness.

Except, as noted, the figures don't actually say what Blackburn is claiming. They make no statement on whether or not stronger laws and enforcement foster innovation. In fact, studies that actually look at that question appear to show that stronger IP and enforcement often hold back innovation and can be incredibly costly to the US economy. The mistake that Blackburn is making -- either out of ignorance or to be intentionally misleading, is to assume that stronger laws and enforcement are the cause of the economic output, when that's not what the report she's quoting says.

America has always been a society that rewards good ideas and protects property rights in a free-market capitalist system...

This actually isn't true, first of all, and as we were just discussing, intellectual property -- a system by which a central government authority hands out massive monopoly rights -- is the exact opposite of a free-market capitalist system. It's quite incredible to argue that the government should give out more centralized monopolies, and then pretend that's free-market capitalism.

... not one premised on permission-less innovation...

It would appear that Blackburn is almost entirely unfamiliar with the history and nature of American innovation. If she'd like, however, I'm sure that Alexis Ohanian would be happy to send Blackburn a copy of his upcoming book on the subject, but innovation in general, and American innovation in particular has a very long and detailed history of exactly that: permission-less innovation.

In fact, permission-less innovation actually is a key hallmark of a free-market capitalist system. If you need to get permission to innovate, often via a government authority, which is what she is advocating for, it's the exact opposite of what she claims she supports. Either way, early American industry thrived on copying technology and content from Europe -- and then often improving on it (without permission). And that's always been the nature of innovation. It's an ongoing process of improvements, and if you add in a requirement to get permission -- which often isn't granted -- you slow down innovation drastically.

It’s wrong to deny creators and innovators the fruits of their labor or to deprive them of their individual right to profit for the work they legitimately create.

Of course, as the US Supreme Court has made clear (does Blackburn not know this?), US intellectual property laws are not based on a "fruits of their labor" concept, but rather act solely for the benefit of the public, as a supposed incentive for innovation. If it was merely a "fruits of their labor" concept, we wouldn't even have a public domain, and yet that was a key part of how the Founders designed copyright and patent law. More importantly, patent law, in particular, clearly deprives many innovators of the "fruits of their labor" by not recognizing an independent invention defense -- meaning that if someone else gets a patent first, every other innovator who came up with the same thing (or better!) separately, is now unable to continue to innovate in that arena, without paying up. That's completely antithetical to the idea of supporting someone getting the fruits of their labor. And that's really the main issue with patent law today: it allows others -- often patent lawyers who buy up crappy patents -- to hold "the fruits" of others' labor hostage.

That’s why the U.S. Constitution under Article I, Section 8 recognized these natural rights and empowered Congress to secure them in a way that advances honest and legitimate activity.

This is simply not true. The Constitutional clause on IP did not "recognize natural rights." In fact, it's quite clear that the framers did not believe that IP was a "natural right" and the Supreme Court has repeatedly reinforced this point. Instead, it granted Congress the power -- if it so chose -- to provide these limited monopolies solely for the purpose of benefiting the progress of science and the useful arts.

That’s what John Locke advocated in his Second Treatise of Civil Government in the 17th century. The origins of this constitutional clause are found in English copyright law, and 12 of the 13 colonies provided these rights after the Continental Congress.

Ah, the RIAA's new favorite bogus talking point. A few months ago, they tried to rewrite history by selectively quoting John Locke. When you put Locke's comments back into context, you realize that he actually spoke out against early versions of copyright, and a detailed analysis of how the US framers drafted that part of the Constitution, showed that they explicitly rejected Locke's commentary as the basis for the constitutional clause.

Blackburn is pushing out bogus RIAA talking points that have been debunked, repeatedly, by actual scholars on the subject. But, just the fact that she's spewing RIAA talking points should make it rather obvious where this writeup came from.

Who is going to take the U.S. seriously if we continue to deny a performance right for sound recordings as the rest of the developed world already does?

The US has rejected performance rights for decades, as Congress recognized the promotional impact of music playing on radio. Does Blackburn really think that no one has taken the US seriously for all of that time?

Will other countries take advantage of U.S.-based innovation if we aren’t willing to take reasonable actions against foreign-based rogue websites that threaten U.S. health and safety?

This is another bogus talking point from the SOPA talking points. What "rogue websites" threaten US health and safety? The US Chamber of Commerce and other SOPA supporters loved to pull the big switcheroo on this one. They would talk about fake drugs and military parts -- which are a tiny and almost non-existent issue, but which represent actual safety threats, and then lump them in with sites that some users access for the purpose of copyright infringement... and then claim they're all "rogue sites threatening health and safety." It's a cheap, hacky debater's trick that should have no place in any "honest" discussion.

We continue to allow 25 percent of all Internet traffic to go to illegal rogue websites.

If they're illegal, take them to court. But, the problem is they're not actually illegal. Blackburn is making that up.

It helps criminal enterprises thrive but it kills American business and hurts consumers.

How? Where? Where's the evidence of this?

Creators benefit from the certainty of consistent and strong enforcement.

Actually, strong enforcement only seems to lead to more splintering and driving infringement underground, but has done nothing to help creators. At all. Instead, what has helped creators is innovation -- the same innovation that folks like the RIAA have been trying to stifle with strong IP laws, advanced by the likes of Blackburn.

America must do more than just offer reports that include the typical feel-good language: “transparency,” “fair use,” “coordination,” and “voluntary initiatives.” Instead of rehashing buzz terms and talking points, we need to institute a national strategy that puts Americans’ private property rights and the rule of law at the forefront.

Wait. Fair use is a "buzz term"? I thought it was a clear part of the law. Hmm. Why, yes, it is. Oh, and remember that study that Blackburn quoted at the beginning, and which she insists shows the need for stronger enforcement and less fair use. Well, as we've noted, another study, which used the identical methodology found that fair use contributes even more to economic output. So, if we are to take Blackburn's initial comment seriously, shouldn't she actually support stronger fair use and greater public rights, rather than locking them down with stronger IP laws?

If we don’t, countries like China and India will have no problem taking advantage our failures to fight for what is rightfully ours.

US IP laws do not apply to China and India as they are, last I checked, separate countries, which have their own laws. Of course, the US's idiotic push for getting those countries to more strongly enforce patents and copyrights has resulted in China, for example, using IP laws to block American companies from the Chinese market. Blackburn should be careful what she wishes for, because the Chinese, unlike Blackburn, recognize that copyright and patent laws are protectionist laws, which they can use to harm foreign companies.

In India’s case, they’ve adopted an industrial policy that exploits our intellectual property on a whole new level. India has found itself on the United States Trade Representative’s Special 301 “Priority Watch List” precisely because of the country’s lack of respect for U.S.-based innovation. Nearly every major U.S. industry — technology, bio, pharmaceutical, chemical, agriculture, communications, medical, and manufacturing — has strongly criticized India’s policies for clashing with internationally accepted IP standards.

And yet all of those industries seem to hire a ton of folks in India. If this was really such a big problem, why would they be doing that?

Let’s begin an honest discussion that acknowledges that intellectual property is a catalyst for American innovation

An honest discussion doesn't start with something where the evidence says the exact opposite.

The genius of the American people and the promise of the free market will outlast and outperform all alternatives so long as property rights and the rule of law are respected in our new virtual economy.

Again, how can she claim that a system of government-granted monopolies has anything to do with a free market?

Blackburn is spewing US Chamber of Commerce and RIAA talking points -- the same talking points that were used to push SOPA. It's almost certain that this means they're gearing up to try again with something SOPA-like. It's not surprising that they're still using the same bogus talking points, but it seems that Blackburn and the US CoC/RIAA don't seem to have learned that spewing pure bullshit about this stuff doesn't work any more.